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“THE RIGHT OF WOMEN TO MAKE A LIVING” 


DISSENTING OPINION 


OF 


« 


CHIEF JUSTICE WALTER CLARK 


BICKETA Vv:-KNIGHT 


IN WHICH THE CHIEF JUSTICE SUSTAINS THE RIGHT OF THE GENERAL 
ASSEMBLY TO AUTHORIZE WOMEN TO ACT AS NOTARIES 
PUBLIC. BROWN, J., ALSO DISSENTING. 


| CxarK, C. J., dissenting: There is but one question presented by this 
ppeal. 

The General Assembly of North Carolina at its late session enacted 

hapter 12, Laws 1915, as follows: “The Governor is hereby authorized 
0 appoint women as well as men to be notaries public, and this position 
hall be deemed a place of trust and profit, and not an office.” 
Upon this authority from the lawmaking department of the Govern- 
ent, to whom by the Constitution that duty is intrusted, the Governor 
f the State issued his commission to Mrs. Noland Knight, the defendant, 
s a notary public. Thereafter this quo warranto proceeding was 
rought, averring that a notary public was not a place of trust or profit, 
s the Legislature had enacted, but was in truth an office, and therefore 
hat the commission issued to her by the executive department of the 
tate under the authority of the Legislature was a nullity because she 
as a woman. 

The action was brought before Judge Webb of the Superior Court, who 
ustained the action of the General Assembly and of the Governor, and 
eclined to hold their acts void. On argument in this Court, the Attor- 
ey-General, while he combated some of the propositions of the defend- 
nt’s counsel, admitted that the act was valid, saying then, and also in a 
vritten opinion: “In the face of the legislative declaration, there ought 
hot to be any serious trouble about the matter.” 

The sole question, therefore, is, after this action of the lawmaking 
department and the Governor, and the admission of the relator, the 
Attorney-General, himself, in open court, “Ought the defendant be de- 
prived of her appointment?’ There can, of course, be other questions, 
more or less collateral, discussed, but that is the sole question presented 
on this record. If she can be thus deprived, it can be done only upon the 
ground that the above acts of the Legislature and of the Governor are in 


00 
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2 


violation of the Constitution. It cannot be contended that the Legisla- 
ture acted ignorantly or unadvisedly. In that body there were many 
able men, among whom were lawyers of acknowledged prominence and 
recognized ability. They were under an oath to support the Constitution, 
as much so as the members of this bench. No one will impute to that 
body a desire to evade or fraudulently circumvent the Constitution which 
they were sworn to support. No one has suggested that. The matter was 
fully discussed in both houses, was thoroughly understood, and the bill 
passed the General Assembly by a large majority in both houses. 

If this Court deems it is its duty to so decree, it ought to point out the 
paragraph in the Constitution which gives it the power, in its opinion, 
to hold this action of the Legislature and the Governor in violation of 
the Constitution; for the Governor as well as the members of the Gen- 
eral Assembly are under the sanction of an oath to maintain the Consti- 
tution. The act “authorized” but did not require him to appoint women 
notaries public. 

The General Assembly of 1913 passed an act in almost identical terms 
authorizing the appointment of women as trustees upon the public school 
boards, and with the same provision, that such “position shall be deemed 
a place of trust and profit, and not an office.” That act has been recog- 
nized without question and acted upon. One hundred and fifty women 
have been appointed to such positions and have discharged the duties 
thereof with credit to themselves and to the benefit of the public. 

There is no provision of the Constitution which defines an “office,” 
and none which creates the position of notary public. The Legislature, 
therefore, could not act in violation of the Constitution in drawing the 
line, as it did, between positions of trust or profit and offices. Cer- 
tainly not, unless the duties of a notary public are of themselves so 
inherently an office and unless it has been so generally recognized as such 
that to term it not an office would be a fraud in legislation. 

Every department of the State Government has always recognized that 
a notary public is not an office, for in this Legislature, as in preceding 
ones, several members were at the same time notaries. The Constitution 
forbids persons holding two offices at the same time. Art. XIV, sec. 7. 
Yet no Legislature has ever held that a member could not be a notary. 
The Governors (most of whom have been lawyers) have appointed mem- 
bers of the Legislature to be notaries while continuing to sit as members, 
and no court has ever held the act of any notary invalid because he con- 
tinued to act as such while a member of a Legislature. The effect of the 
majority decision in this case may invalidate many instruments acknowl- 
edged before notaries, heretofore recognized as valid. 

The words “office” and “public office” are very frequently used loosely 
without any intention to draw the line as to whether a position is an 
“office,” a “place of trust or profit,” or a “public employment,” and it is 
due to that fact that many opinions have spoken of the position of notary 
public as an office. “Office” means simply a “duty,” from the Latin word 


3 
offictum ; and as this position is called “notary public,” it has been fre- 
quently, in casual writing of opinions, referred to as a public office. 

But there has been no opinion of the Supreme Court of this State nor, 
it is believed, of any other State which has ever held the position to be a 
“public office” when the line was being drawn between “public offices” 
and “places of trust or profit” or “public employment.” It is stated posi- 
tively, after much research, that no court at any time, in any State or 
country whatever, has held the position to be a public office when there 
was an act of the Legislature decreeing it not to be a public office. In 
the Opinion of the Judges, 165 Mass., 599, the Court held that in that 
State the position of notary public was named and created by the Con- 
' stitution, and therefore the Legislature could not make it a “place of 
trust or profit” or a public employment merely, stating, however, that if 
the position was created (as it is in this State) by the Legislature, that 
body would be competent to make it such position as they saw fit. 

In this State there have been two or three decisions which loosely refer 
to the position of notary public as an “office,” but that was at the time 
when the statute referred to it as an office. It took its rank as an office 
from such statute, and if the General Assembly had the power to pass 
the act recognizing it as an office, the General Assembly of 1915 had the 
power to make it a “place of trust or profit.” Nothing is better settled 
than that the act of one Legislature can be repealed or amended by a suc- 
ceeding one. Neither act has any validity except as the organized expres- 
sion of the public will of the time, which is subject to change or modifica- 
tion by any subsequent legislature. 

In our own State this Court has followed (Mial v. Ellington, 134 N.C., 
131) the decisions, universal elsewhere, that the Legislature has entire 
power over offices created, not by the Constitution, but by the Legislature 
itself (Scown v. Scarnecki, 164 Ill., and numerous cases there cited), and 
has said in words exactly applicable to the facts of this case (Brown v. 
Turner, 70 N. C., 100): “When the Legislature created and called it an 
office it was an office, not because the peculiar duties of the place consti- 
tuted it such, but because the creative will of the lawmaking power im- 
pressed that stamp upon it; therefore, when that stamp was effaced by 
the repealing act it shrank to the level of an undefined duty. The author- 
ity that invested these duties with the name and dignity of a public office 
afterwards divested them of that name and dignity.” 

We have, however, had two instances in this State in which the ques- 
tion was sharply presented whether the position of notary public was an 
office or not, and in both it was held not to be, and in those cases only was 
the question squarely presented. 

In 1867 it became an important matter to draw the line between what 
positions in this State were offices and what were not. The Attorney- 
General of the United States, on 12 June, 1867, published his “considered 
opinion” (as our Court styled it), in which he defined what positions 
were offices and what public employments were not offices. The thir- 


4 


teenth paragraph in his opinion, after reciting what were “offices,” says, 
as to those “not offices”: “13. Persons who exercise mere agencies or em- 
ployments under State authority are not disqualified, such as commis- 
sioners to lay out roads, commissioners of public works, visitors of State 
institutions, directors of State banks or other State institutions, notaries 
public, commissioners to take acknowledgment of deeds, and lawyers.” 
That opinion of the Attorney-General of the United States is quoted in 
full by our Supreme Court and adopted, Worthy v. Barrett, 63 N. C., 
at p. 203. 

This Court subsequently and continuously down to this time has recog- 
nized its correctness, for this Court without question has been licensing 
women as lawyers, certainly a far more important position, and the stat- 
ute requires that all lawyers must take an oath of office and an oath of 
allegiance both to the State and Federal Governments. 

The only other case in which the point has been exactly presented was 

Lawrence v. Hodges, 92 N. C., 681. The Constitution, Art. XIV, sec. 7, 
provides: ‘‘No person who shall hold any office or place of trust or 
profit under the United States, or this State, or any other State, 
shall hold or exercise any other office or place of trust or profit under the 
authority of this State.” Revisal, 2349, provides: “The clerks of the 
Superior Court may act as notaries public in their several counties by 
virtue of their office as clerks, and may certify their notarial acts under 
the seals of their respective courts.” It cannot be contested that clerks 
of the courts are public officers created by the Constitution. If, there- 
fore, the position of notary public was an “office” also, the same person 
could not hold both positions. The act of Congress required certain 
mortgages on vessels to be acknowledged before a notary public, and in 
Lawrence v. Hodges the question was presented whether the clerks were 
valid notaries public, and it was held in 92 N. C., at p. 681, that they 
were. It thus conclusively appears that in both the cases in which the 
point was presented the position of notary public was held not to be an 
office. : 
McCullers v. Comrs., 158 N. C., 80, holding that the Governor and 
others can discharge certain functions ex officio, in no wise conflicts with 
Lawrence v. Hodges. Tf it did, all that would be necessary would be to 
provide that any woman who held the position of school trustee, to which 
she is eligible, can ex officio discharge the duties of a notary public. The 
position of “lawyer” has been often styled an “office,’ but women were 
admitted to the bar in this State because it was found that to hold that 
position an office would disqualify a large part of the Legislature and 
many other officeholders, State and Federal. While the statute incident- 
ally refers to notaries public and lawyers as officers, there has been no 
express decision that a notary public is an office, till now. 

But it has been argued by some that the position of notary public was 
an office at common law. If it had been, the common law is simply the 


5 


English law, the largest part of which was the decisions of the English 
judges based upon their customs or the construction of their statutes, 
and of course subject to be changed at will by the Legislature of North 
Carolina in all matters that concern our self-governing people. In fact, 
however, a letter from Sir John Simon, at present Attorney-General of 
England, written in January of this year, says: “No act of Parliament 
has ever disqualified women from holding the position of notary public 
in this country, and it is very certain that none such could be passed.” 
Even if it had been otherwise, it would not have disqualified the General 
Assembly of North Carolina from defining it to be a mere place of trust 
or profit, and authorizing women to hold it. 

In U.S. v. Bixby, 10 Bizzell, 520, it was held by Gresham, J., that “at 
common law a minor is eligible to the position of notary public.” In 
Virginia, which naturally more nearly follows the English law than any 
other State in this Union, its Attorney-General says: “In this State any 
man or woman over 18 years of age can be a notary public.” 

But aside from any statute which (like our act of 1915) expressly 
makes the position “a place of trust or profit,’ or our previous statute, 
which, without expressly making it an office, merely required an oath of 
office (as is also required of lawyers, public administrators, and others 
who have been held to be not officers), the position in itself inherently is 
not an “office.” The duties of a notary public are prescribed (Rev., 
2350) and are purely those of certificate and analogous to those of a 
commissioner to take affidavit, and have in them no element of an office. 

The decisions have all held that to be a “public office” as distinguished 
from a “place of trust or profit” or a “public employment” the officer 
must possess and exercise some of the sovereign powers of the State, 
either executive, legislative, or judicial. S. v. Smith, 145 N. C., 477, 
citing Mechem on Pub. Officers, sec. 1. A notary public cannot legislate. 
A notary cannot execute the law, and has no judicial functions. The 
duties of the position are simply to take down and certify evidence. For 
the purpose of certification, the notary has a seal, just as formerly any 
grantor in a deed had, to authenticate his act by his seal. This did not 
make every grantor a public officer. It is true that in certain rare cases 
a notary public has the power of contempt. So by statute has every 
referee in North Carolina (Rev., 492), but a referee certainly is not 
therefore an officer. 

The entire experience and recognition of the rest of the world is 
against the position being ex vz termini a public office. In Massachu- 
setts and in Ohio and one or two other States the position has been made 
an office by the Constitution or a statute. After the passage of this act 
of our General Assembly an official inquiry was instituted as to the 
status of notary public in the other States. The replies from their judi- 
cial departments show that out of the fifty-three jurisdictions in the 
United States (7. e., forty-eight States, the District of Columbia, and the 


6 


territories of Alaska, Porto Rico, Hawaii, and the Philippines) women 
are competent to be notaries public in all except ten, and in those ten 
they were held incompetent either because, as in Massachusetts, the Con- 
stitution had made the position an office or a statute had made it an 
office, or, as in a few of them, “it had not been the custom to admit 
women to hold the place, and there was no statute as yet authorizing 
them to fill the position.” In no case was there found, or reported, a 
decision holding women incompetent to fill the place when there was a 
statute authorizing them to do so, or providing that the position was not 
an office. Outside of these ten States (of our fifty-three jurisdictions) 
there is no country which disqualifies a woman to hold the position of 
notary public. There are semicivilized and barbarous countries in which 
they are allowed to hold no position whatever, and in those countries 
there is probably no such position. 

There have been many cases in this Court, of course, holding acts of 
the Legislature unconstitutional. But no one has ever found express 
authority in the Constitution to do so, and it is claimed to exist by con- 
struction and inference of the courts in their own favor. This Court has, 
almost in every instance, therefore, wisely taken the pains to say that it 
will not exercise this assertion of supreme power in setting aside the 
action of the other departments of the Government unless such action 
was clearly unconstitutional, and has repeatedly quoted on this point 
Ogden v. Sanders (U..S. Supreme Court), 12 Wheaton, at p. 270, in 
which it was held that the highest Court in the Union would not even 
hold a State act unconstitutional as in violation of the Federal Constitu- 
tion unless it were so “beyond all reasonable doubt.” This is the consid- 
erate language of that high Court: “It is but a decent respect due to the 
wisdom, integrity, and patriotism of the legislative body, by which any 
law is passed, to presume in favor of its validity until its violation of the 
Constitution is proved beyond all reasonable doubt.” 

Ought not this Court to follow what we have so often quoted and 
approved, and out of a “decent respect to the wisdom, the integrity, and 
the patriotism of the legislative body” hold that the violation of the 
Constitution by that body in this case “is not proved beyond all reason- 
able doubt” ? 

This position had its origin in the Roman civil law. Its duties were, 
and still are, like those of a stenographer, with power only to certify the 
evidence taken down or acknowledgments made of instruments. The 
notary public has no legislative, executive, or judicial authority. He 
cannot even probate a deed, but merely certifies its acknowledgment 
(White v. Connelly, 105 N. C., 65), though it is held that even a deputy 
clerk, who can probate it, is not an officer. 

The Attorney-General of the State, in this very case, appearing in 
open Court, admitted the validity of this statute. The Attorney-General 
of the United States has said in an official opinion that “commissioners 


fi 


of affidavits, notaries public, and lawyers” are not public officers, and 
this Court in an unanimous opinion affirmed that ruling and have acted 
upon it ever since as to the other two positions. Why overrule it now 
as to notaries public alone? The Attorney-General of Great Britain 
says that the law does not disqualify women from being notaries public. 
Why should we disqualify them? Im all the other States and territories 
of the Union, except ten, women are admitted to be notaries public. In 
our own State the Revisal, 3349, permits the clerk of the court to be a 
notary public, which he could not be if it was an office, and this Court 
held, as above stated, that he was a valid notary public where the valid- 
ity of a mortgage under a United States statute required the instrument 
to be acknowledged before a notary public. In the ten States not per- 
mitting women to be notaries public there is no statute permitting them 
to be. 

If any opinion I have ever written, when the statute as to notaries was 
different, could be fairly construed as opposed to what is herein said by 
me, under the present statute, it would not be an estoppel to hold cor- 
rectly in this case. Besides, I have no pride of opinion that compels me 
to prefer former opinions, if erroneous, to doing justice now. I have 
never deemed myself infallible, but hold that all judges should be glad of 
opportunity to correct their mistakes. We should grow wiser with the — 
years; otherwise, experience is of no value. The infallibility of judges 
is not an American doctrine, nor indeed is it held anywhere. 

Under changing conditions, due largely to the introduction of ma- 
chinery, women are forced to seek new and wider employment. The 
Legislature, recognizing this, and learning that in some quarters there 
was opposition to their receiving fees in the purely clerical work of a 
notary public, owing to some passing references to the position as an 
“office” in two or three decisions, passed an act making the position 
merely “a place of trust or profit,’ and not an office, and specifically 
authorizing the Governor to appoint women. This was purely a political 
question, and the Legislature was acting with an intelligent understand- 
ing of changed economic conditions and in a humane desire to do justice 
to a deserving class, and with full recognition of their obligation to 
observe the Constitution. The Governor was “authorized,” not “re- 
quired,” to appoint women. He is one of the foremost lawyers of the 
State, with the intelligence, firmness, and patriotism to know and main- 
tain the limitations of the Constitution. He appointed the plaintiff to 
this position. The judge of the lower court, sworn also to obey the Con- 
stitution, and a learned lawyer, held that it was no violation of the 
Constitution for the Legislature to so enact. Our Attorney-General, who 
brought this action, stated on the argument, after fuller investigation, 
and also in writing, his opinion that the action of the Legislature is con- 
stitutional. 


8 


Ought this Court, by three votes to two, hold that this action of the 
executive department and of the Legislature and by the other judicial 
officers who have passed upon this matter has been beyond question a 
violation of the Constitution, and that, too, without specifying the pro- 
vision of the Constitution that has been so dangerously and alarmingly 
violated when the Legislature has permitted women working for a living 
to earn a few needed fees by authorizing them when taking down and: 
certifying evidence merely to authenticate their certificates by adding 
the impression of a seal? The statute provides that such impression of 
a seal does not make the position an office. 

It has been urged, however, that fees are paid for impressing the seal! 
“Ay! there’s the rub.” Women are not voters, and there are those who 
think that fees should be reserved exclusively for voters, in recognition 
of their services. But these fees are not paid by the State or county, but 
by individuals, and notaries receive no salaries. 

It was held in Brown v. Turner, 70 N. C., 100, that the position of 
Public Printer, worth many thousands of dollars, which the previous 
statute had made an “office,” was reduced to the grade of a “place” be- 
cause the Legislature said so, though the effect was that a Republican 
Court thus admitted the validity of the act of a Democratic Legislature 
in filling the “place” with a Democrat when the Republican Governor, 
holding it to be an “office,” had appointed one of his own party. 

In S. v. Smith, 145 N. C., 476, this Court held that a public adminis- 
trator who has a term of eight years, gives bond, and takes an oath of 
office (Rev., 19) is a mere “‘place” and not an “office,” Brown, J., quoting 
from Chief Justice Marshall, saying that “Although an office is a public 
employment, it does not follow that every public employment is an office.” 
S. v. Smith was cited with approval by Allen, J., in Boynton v. Heartt, 
158 N. C., 490. 

The Constitution of this State does not prohibit the Legislature from 
admitting women to any office. The prohibition is just the opposite, and 
merely forbids any one who is a voter from being disqualified to hold 
office. S.v. Bateman, 162 N. C., 591. 

Even if every position created by the Legislature, however small, could 
be held to be an office, notwithstanding legislative enactment to the con- 
trary, the Constitution of this State has never made the requirements 
for voting and for holding office the same. Prior to 1868 the Constitu- 
tion imposed the ownership of property as a prerequisite for certain 
offices. The Constitution of 1868, discarding all that, imposed the sole 
limitation upon the Legislature that no voter should be disqualified to 
hold office, with the exceptions therein named; which exceptions do not 
name women. 

Singularly enough, the majority opinion in this case quotes from a 
judge who was a woman (Portia), when she held that Shylock’s demand 
of a “pound of flesh” must be granted, because else the ruling would be 


9 


“recorded as a precedent,” ete. It will be recalled, however, that she 
almost immediately reversed that ruling, to which she had been over- 
persuaded, and rendered a just judgment on the merits. That case has 
been famous for ages as showing the competency of a woman for judicial 
position, in that she administered justice and was superior to the super- 
stition that erroneous precedents are more sacred than justice. A woman 
herself, Judge Portia certainly did not intend that her decision should be 
quoted as authority that a woman could not be a notary. 

The General Assembly has all the powers of legislation that the people 
themselves have, unless restrained by some provision of the Constitution. 
Cannot the Legislature of a sovereign State provide that the function of 
authenticating a certificate or acknowledgment or protest by making the 
impression of a seal on paper shall be a “place” and not an “office” ? 
And that women may receive the fees for such work, if appointed ? 

The feudal and medieval theory as to women—“half angel and half 
idiot” —meant in practice that those above the necessity of work might 
be on public occasions spoken of as if “half angels,” but that all classes 
of them and all the time, were treated as at least ‘“‘half idiots” and with- 
out legal rights. If married, they were submerged in the existence, and 
under the power, of their husbands, who had the right even to chastise 
them at will. This last right persisted in North Carolina down to 1874, 
when Settle, J., in S. v. Olwwer, 70 N. C., 61, said the courts had “ad- 
vanced from that barbarism’”—thus overruling the then recent cases of 
S. v. Black, 60 N. C., 262; S. v. Rhodes, 61 N. C., 453, and others. In 
all progressive communities feudal ideas have passed, or are passing, and 
women are held to be human beings, entitled to equal rights with men. 

There is but one question in this case, “Can this defendant discharge 
the duties of a notary when so authorized by an act of the Legislature 
and commissioned by the Governor? Or is she barred because she is a 
woman ?” 

Under the Constitution of the United States no one is debarred from 
holding any office, from President down, because of sex. What pro- 
vision of the State Constitution will be shattered, and what detriment 
will the public welfare receive, if by legislative and executive authority 
a woman shall authenticate a certificate, made by herself, by impressing 
the seal upon a piece of paper ? 

If the plaintiff were a man he would not be debarred from holding this 
appointment unless he were an idiot, a lunatic, or a convict. The Legis- 
lature, voicing the sentiment of the people of the State, have enacted 
that it is neither a crime nor a defect in this appointee to discharge the 
clerical duties of a notary public because she is a woman. Shall the 
Court hold that it is? 


Brown, J., also dissents. 


Hii 


FOR USE ONLY IN 


THE NORTH CAROLINA COLLECTION 


UNCPS 52962 


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